Opinion
No. Civ. S-06-0008 DFL CMK.
May 23, 2007
ORDER
Petitioner's motion for a certificate of appealability (COA) is granted as to whether applying the second and successive petition provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) has an impermissibly retroactive effect when the initial petition was filed and denied on the merits before AEDPA became effective. The Ninth Circuit has decided the issue. United States v. Villa-Gonzalez, 208 F.3d 1160, 1163-64 (9th Cir. 2000); but see In re Jones, 226 F.3d 328, 332 n. 1 (4th Cir. 2000) (rejecting the Ninth Circuit's holding in Villa-Gonzalez). It remains debatable for purposes of issuing a COA, however, because of conflicting case law from other circuits. See Lambright v. Stewart, 220 F.3d 1022, 1026 (9th Cir. 2000) (holding that a question well-settled in the circuit may be the subject of a COA when another circuit has reached a conflicting view).
IT IS SO ORDERED.